Individualized Criminal Responsibility - Essay Example

Number Subject Name Lecturer’s Name Law Due date Date Submitted Introduction Criminal law is based on individual responsibility. The presumption here is that people are free to make choices. The criminal responsibility is therefore affixed on an individual based on the choice that they make to do that which is prohibited by law. The law does not take into consideration other factors that may drive a person to commit a crime. The failures to consider social factors that may drive one to commit a crime have formed the bases of the criticism of the individualized criminal responsibility. The main focus in affixing responsibility is the two main elements; Actus Reus and mens rea. Actus Reus is the guilty conduct, the conduct that has been prohibited by law. Mens Rea, on the other hand, is the guilty mind. Criminal responsibility is not affixed on an individual if there is no mens rea. There are, however, defenses that persons are allowed to use in law to avoid criminal responsibility. One of the principles of criminal law is mens rea (David 2012). A person could not be held for a crime if he or she did not have a guilty mind. In terms of individual responsibility, the principle assumes that a person has the capability to understand that the things they do might harm or affect others negatively. The man is said to be able to make choices. In this case, if a person commits a crime, it is assumed that he or she had the mental capacity to figure out that what he or she was doing was harmful. Furthermore, the person should have made a choice to avoid doing so. A guilty mind would only be referred to where the individual in question has mental capacity. There are instances where a person cannot be said to be capable of having mens rea and therefore, not capable of having individual responsibility for a crime. One of the instances is where the person in question if a minor of 10 years and below.It is an irrebuttable presumption that they cannot be held responsible for a criminal act. The reasoning here is that they lack intent (Bee 2000). Children under this age will, in most cases do things are not understanding the repercussions of such actions (Zia 2015). Another category of persons who are said not have mental capacity are insane persons (Claire 2015). They do not have control over their thoughts and can therefore not make choices as to what is right or wrong or even understand the harm that their actions may cause to other persons. The last category of persons, in this case, is the incapacitated. Incapacitation makes one not to be in control of their thought process. Individual responsibility is therefore not fixed to such persons for the reason that they are incapable of having a guilty mind. However, only in cases of children under the age of 10 do the law allow for an irrebuttable presumption of innocence (Bazelon 2000). In criminal law a crime is not complete without the guilty act (Mc Alhone & Binns 2010). This is the action that has been prohibited in law. This is what is referred to as actus reus.One cannot be brought to book for something that the law has not prohibited. Furthermore, one cannot be held responsible for an act that has not yet been done. The action, in this case, is said to be harmful to others. Criminal responsibility arises because the person chose to do the action that the law prohibits. It is an implementation of that which is going through a person’s mind. In other words, the guilty mind cannot be complete without the guilty action. The actions are said to be voluntary; this is why the person doing the action is held responsible for the action (Rush & Yeo 2006). There are some instances where the actions by a person might not be voluntary. In such cases, they should not be held to responsible. Such instances are isolated, when the movement causing the action is not a voluntary movement, Sleepwalking is one such instance. The person who does something that is against the provision of the law when sleepwalking cannot be held accountable for his or her action since he or she is not in control of his or her movement. Another such instance is where a person has reflexes. The reason as to why such persons are not said to be responsible criminally is because their actions are not voluntary. Voluntary actions are used to determine individual responsibility in criminal law (Sanford et al. 2012). The individual responsibility in criminal law has its loopholes. That means that it a trap that is designed only to catch the guilty but ends up catching even those that should not be held for some actions. The best way to clarify this point and bring out the loopholes is by looking critically at the principles. The first loophole is that the law assumes that there are no other factors that drive a person to do certain things. The fact is that something or a situation trigger the thought process. A good example here is where a very poor person who cannot afford food decides to steal in order to satisfy his or her hunger. The law does not first consider the reasons for the action. It looks at the guilty mind, and the guilty act and the decision are made that the person is guilty. Such a process of deciding whether a person is responsible criminally or not is flawed since it does not take into consideration the reasons behind the actions of an individual. The fact that mitigating factors are available, do not really do justice to the accused, but only serve to reduce the burden of the punishment the person is to bear, the decision of whether they are guilty or not has already been made (Frank 2014). Scientific studies have shown that the actions of people are not chosen as such but rather, determined by circumstances (Clear & Dammer 2003). The law should, therefore, be structured in a way that it appreciates that the actions are not merely choices but responses to some surrounding circumstances. It is not enough that such factors be included as mitigating factors; the factors should be used in deciding criminal responsibility. Coming up with a good system of criminal law is one hard task. The reason is that there should little or no loophole in the system; guaranteeing that is not an easy task. No system can be fool proof, there are meant to be gaps. The target for policy makers should be coming up with a system that has the least number of issues (Welsh & Harris 2008). In the current system of criminal law has had a loophole as has been discussed above. The solution here is to ensure that the two elements of criminal responsibility are not considered solely when determining criminal responsibility. There should be a careful analysis of the reasons as to why someone acted in a certain way. The fact that the reasons are considered during mitigation is not enough. At this point, the verdict of guilt has already been given. The reasons that drove a person to do a certain act, therefore, serves only to reduce the sentence of the accused, which is not always the case, sometimes the reasons do not move the court to give even the slightest deduction in the penalty. The criminal system should therefore be structured in a way that when the decision of whether a person is guilty or not is made, enough consideration has been given to the reasons as to why the person acted as they did. This way a loophole will have been sealed, instead of reducing the penalty as the case has been, the person might be found not have been guilty in the first place. The proposal here is to have three factors to be determined before a person can be said to handle a criminal act. Instead of the common guilty mind and guilty act only, a third aspect should be introduced, that is, the reasons why an individual acted as they did. If this is implemented, cases like the one cited above of a person stealing for lack of food would not be classified as a crime. Conclusion The system of criminal as it exits places criminal responsibility upon a person on the basis that free will governs the people. In this case, the actions by people are as a result of the choices that they make. The criminal system does not put into consideration the fact that sometimes, the actions of individuals may be driven by other factors and that persons do not merely make choices, they are driven by circumstances to do certain things. There is therefore a need for change in the system to make sure that the reasons for acting in a certain way by the person who is accused are also considered before deciding whether a person should be held responsible for their actions or not. The consideration of these factors during mitigation is not enough since, at the time, a person has already been declared guilty. References List Bazelon, L 2000, Exploding The Superpredator Myth: Why Infancy Is The Preadolescent’s Best Defense In Juvenile Court, New York University Review, New York. Bee, H 2000, The Developing Child, Allyn & Bacon, Needham Heights. Claire, H 2015, “The defense of insanity; an argument for abolition,” Journal of criminal law, Vol. 79 no. 4 Clear, T & Dammer, H 2003, The offender in the community, Thomson Wadsworth, Canada David, J 2012, Principles of Criminal Liability, available from Frank, J 2014, Criminal Justice Today: Introductory Text for the 21st Century, Prentice Hall, London Mc Alhone, C & Binns, R 2010, Criminal Law: The Fundamentals, Sweet & Maxwell, London Rush, P & Yeo, S 2006, Criminal law sourcebook, LexisNexis Butterworths, Chatswood, NSW Sanford, H, Stephen, J & Rachel, E 2012, criminal law and its processes: cases and materials, Wolters Kluwer & Business, Alphen aan den Rijin Welsh, W & Harris, P 2008, Criminal Justice; policy & planning, Thomson Reuters, Minnesota Zia, A 2015, “Young Offenders, ‘Secure Colleges’ and reforming criminals,” Journal of criminal law, June 2015 vol.79 no.3 211-228 Read More